Senate Releases Sweeping Immigration Reform Bill

Following are some highlights for the comprehensive bipartisan immigration reform bill introduced in the Senate on April 17, 2013.

H-1B Cap Raised, but New Restrictions on Temporary H-1B Workers. In an effort promotemarket-based limits, the annual H-1B cap would be raised from 65,000 to 110,000, and would be adjustable upwards to as high as 180,000 per year if employer requests for H-1B workers rises. The 20,000 additional H-1B slots currently available for U.S. Master’s degree graduates would be increased to 25,000, but would be limited to U.S. Master’s graduates in science, technology, engineering and math (STEM) fields only.

However, the bill would also impose onerous new obligations and restrictions on U.S. employers hiring H-1B workers, reportedly including the following:

Higher wage obligations

Mandatory recruitment of U.S. workers and online posting for H-1B positions

Increased filing fees and limits on H-1B hiring for “ H-1B dependent employers” (more than 30 % of a company’s workforce are H-1B or L-1 employees)

Entrepreneur Start-up Visa. The proposal offers up to 10,000 new temporary visas to entrepreneurs who create at least three jobs, raise at least $100,000 from angel investors, venture capitalists or other investment groups, and generate at least $200,000 in revenue.

Retirees and Snowbirds. There is a “retiree visa” for purchasers for residences with $500,000 cash or more and also a provision for Canadian snowbird homeowners and renters.

New Employment Eligibility Verification Obligations for U.S. Employers. Within five years after the bill’s passage, all U.S. employers would be required to enroll in the E-Verify system. Large employers would be required to enroll sooner, and mandatory enrollment would be phased in later for small businesses and certain industries (e.g. agriculture). The bill would also incorporate “photo matching” into E-Verify screening for new hires, requiring employers to certify that the photograph on the identity document presented by the new hire exactly matches an identical photograph in the E-Verify system.

Merit-Based Point System. A new merit-based option would make green cards available based on education, employment, length of residence, and other considerations.

Re-Allocation of Immigrant Visa Quotas to Clear Backlog. The bill proposes various reforms to the current employment- and family-based immigrant visa quota system designed to reduce and eliminate visa processing backlogs. Significant changes include, but are not limited to, the following:

Derivative spouses and children of principal immigrants in both employment- and family-based categories would be classified as “immediate relatives,” and no longer be counted toward numerical limits.

Many employment-based immigrants would no longer be counted toward annual numerical limits, including all EB-1 categories (extraordinary ability, outstanding professors/researchers, and multinational executives/managers), doctoral degree holders in any field, and some physicians.

EB-2 classification would be expanded to include a new sub-category for foreign nationals who earned U.S. Master’s or higher degrees in STEM fields during the past five years, and have an offer of employment in a STEM field.

Per-year numerical limits on EB-2 and EB-3 visas would be increased.

W Visa for Lower-Skilled Workers. The bill proposes a new nonimmigrant, temporary worker category, a W visa for workers to perform services or labor. It will require registration and certification:

The employer must register.

The position must be registered.

The worker must request and receive certification for W status.

Employers will need to recruit for U.S. workers for 30 days. 20,000 W visas would be available starting in 2015, with the number increasing to 75,000 in 2019.

“Blue Card” for Agricultural Workers. Agricultural workers would be eligible for a new type of legal status work authorization card: a blue card. Ag workers would not be tied to a single employer. Wages would be set by the Department of Agriculture, instead of the Department of Labor. The ag workers must have done the following:

Worked in the U.S. ag industry for at least 100 days in the two years prior to December 31, 2012

Pay a $400 fee

Paid their taxes

Have no criminal record

The bill caps the blue cards at about 112,000 for the first five years. Blue card holders could be eligible for permanent legal residency in five years.

Registered Prospective Immigrant (RPI). Current undocumented noncitizens could apply for “registered prospective immigrant” (RPI) status with valid work authorization under the following circumstances:

Presence in the U.S. since December 31, 2011

Passing a background check

Paying a $500 penalty fee

Paying taxes

RPI status would be available for six years and could be renewed for another $500. Permanent resident status would be available after payment of an additional $1,000 fee and the following:

The border is sufficiently secure.

All individuals who are waiting for green cards when the bill is enacted have been processed, that is, those in the country without authorization to the “back of the line.”

The RPI possessed the status for 10 years.

Tax payments are up-to-date.

The RPI demonstrates knowledge of US civics and English.

Path to Residency or Citizenship

The bill does not provide a direct route to U.S. citizenship for those adjusting from unlawful status, but it does not prohibit applying for citizenship.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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